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Shared Parental Leave and Sex Discrimination

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Is it discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave?

No - whether the claim is expressed as direct or indirect discrimination, or equal pay - held the Court of Appeal in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall.

In two appeals heard together, the Court of Appeal decided it was not discriminatory to pay men more than the statutory minimum parental leave pay when women were paid more than the minimum for maternity leave. There were various claims put forwards by both Claimants.

The Court decided as follows:

Direct Discrimination 

The exception to a comparison between employees for "special treatment afforded to a woman in connection with pregnancy or childbirth" is wide enough to include enhanced maternity pay. The minimum of 14 weeks' leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks and:

"The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner."

Men on parental leave and women on maternity leave are therefore not in comparable positions for the purposes of Equality Act 2010.

Equal Pay 

A contractual difference in shared parental leave pay between men and enhanced maternity pay for women is properly be characterised as an equal pay claim. The clause in a contract providing women with a higher level of pay is more favourable to women than men.

The Equality Act 2010, however, provides that the sex equality clause implied into contracts of employment does not apply where discrimination is specifically excluded elsewhere in the Act. Paragraph 2 of Schedule 7 to the act says:

"A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth."

For the same reasons as direct discrimination, that is wide enough to include enhanced maternity pay. As a result, there is no claim for equal pay as it is specifically excluded by Equality Act 2010.

Indirect discrimination 

There is a specific exclusion for indirect discrimination claims where they would be equal pay claims except for a specific exception. The exception for equal pay in paragraph 7 of schedule 2 therefore means that and indirect discrimination claim cannot be brought either.

The end result is that all of the Claimants' grounds of appeal were dismissed and one of the Respondent's cross appeals was allowed. All claims therefore dismissed.

Thanks to Matthew Jackson of 10 KBW for preparing this case summary.